Immigration Nation

Reversing Birthright Citizenship Would Reverse a Unique American Achievement

Immigrants to America built our nation, as every kid in grade school knows. Immigrants have flocked to our shores for more than four centuries fleeing oppression or famine in Europe and Asia, packed into slave ships in Africa, and seeking opportunities to build a new and better life somewhere other than their native lands around the globe. To put it bluntly, immigrants are us. Yet for some reason hard-line conservatives want to abandon this unique immigrant heritage by denying birthright citizenship to Americans born of immigrant parents.

Their legal reasoning for such a radical reinterpretation of settled constitutional law is specious at best. And their shortsightedness about the consequences of such a step is stunning. Here’s a quick look at the overwhelming evidence in favor of birthright citizenship, its central importance to core national values, and the devastating effect its elimination would have on our nation’s future well-being and vitality.

In many ways, conservatives’ exclusive view of citizenship traces directly back to the Supreme Court’s most infamous decision in Dred Scott v. Sanford. Dred Scott held that a former slave was not welcome into the community of U.S. citizens and warned that the states cannot “introduce a new member into the political community created by the Constitution of the United States.” Under Dred Scott’s reading of the Constitution, only the descendants of those fortunate enough to be embraced by the founding generation could claim the privileges of citizenship. Those disfavored by the new nation were permanently excluded from participation in its political community.

Eleven years and a bloody Civil War later, when the framers of the 14th Amendment composed its text, they explicitly rejected the notion that America is a country club. This is why the hard right’s assault on birthright citizenship—claiming that the Constitution does not in fact grant citizenship to the children of immigrants to the United States—does not survive contact with the text of the Constitution itself. Under the 14th Amendment, “[a]ll persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” A person’s presence within the United States at birth is sufficient to make them a citizen, regardless of their race, ethnicity or the immigration status of their parents, unless they are not “subject to the jurisdiction” of the United States.

“Jurisdiction” refers simply to a country’s power over an individual. And if the United States lacks “jurisdiction” over the children of immigrants then it would also mean the U.S. government is powerless to deport those individuals or to punish them for crimes committed within the United States. The framers of the 14th Amendment clearly did not believe that the children of persons who enter the United States with or without legal sanction are immune to its laws, and no court has ever entertained such an absurd proposition.

This does not mean, of course, that the jurisdiction requirement is meaningless. Foreign diplomats and their families, for example, are granted broad immunity from U.S. law—and thus are not entitled to citizenship under the 14th Amendment. Similarly, at the time the 14th Amendment was drafted many Native Americans were subject only to tribal law—not to the U.S. law—and thus were not “subject to the jurisdiction” of the United States.

Opponents of birthright citizenship refuse to accept that the Constitution means what it says and argue that immigrants are not subject to U.S. jurisdiction because they do not owe “allegiance” to our government. Some jump to conclusions even more divorced from the constitutional text, claiming that the Constitution extends citizenship only to the children of parents with certain immigration status. One searches the text of the Constitution in vain for any language supporting such positions.

Fortunately, the Supreme Court does not share the belief that we can ignore a clear constitutional mandate. The Court concluded more than 100 years ago that a man of Chinese ancestry born in San Francisco was in fact a U.S. citizen by birth. That case—U.S. v Wong Kim Ark—was notably decided in 1898 at the height of anti-Chinese sentiment. Yet the ruling was not even close at 6-2 because the legal issues were clear.

The Court confirmed more recently that the 14th Amendment plainly does not concern itself with an individual’s immigration status in its 1982 decision in Plyer v. Doe. In the Court’s words, “[T]he Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter.”

Even if the constitutional arguments in support of birthright citizenship were not dispositive (which they are), one wonders why conservatives would choose to walk down this path of opposition. Neither their means (judicial activism of the highest order) nor their end (creation of a birth-based underclass) hews to the values conservatives have long claimed to embrace.

Right-wing conservatives’ zeal to end birthright citizenship invites the very type of judicial activism they purport to abhor. They want the Supreme Court to reverse its time-tested reading of the plain language of the Constitution in their single-minded pursuit of a shortsighted political result. And abandoning the principle of birthright citizenship would radically reshape the character of our nation. Denying these children U.S. citizenship would stigmatize them at birth and exclude them from the body politic in a way that violates our country’s foundational commitment to freedom and our opposition to birth-based caste.

Conservatives talk in soaring terms about freedom, but freedom emanates from American soil. No one chooses where she or he is born so our Constitution endows children born on our soil with an entitlement of their own, delinked from their family’s status or actions. We find it unthinkable as a nation to hold children responsible for their parents’ actions. Yet conservatives’ rush to eliminate birthright citizenship would do just that, and it puts them squarely outside the American tradition.

This viewpoint embraces Old Europe’s illusions about class and would create the type of segmented society that the framers of the 14th Amendment indisputably sought to abolish. As the Plyler Court said in a parallel context: “This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents. The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.”

No need to hypothesize here about the practical implications from this regressive approach—take a look at the consequences of immigration laws in Germany. It wasn’t until 1999 that the German government changed its citizenship laws to grant conditional birthright citizenship. German nationality was until then almost exclusively tied to ancestry, and dual nationality still is the exception. These restrictions were entirely counterproductive. Germans with Turkish background, who consider themselves part and parcel of their country, are still considered “Turks” by many. Turkish politicians have used the resulting uncertainty for their political benefit, and so have German conservatives.

Germany and a number of other European countries regulated labor migration for half a century by withholding access to citizenship for the so-called guest workers. Those countries are bearing the consequences of that epic mistake today. Nearly half of foreign students in Germany today, for example, and most children from migratory backgrounds, are assigned to the lowest educational track (Hauptschule), which primarily prepares them for low-skilled jobs. Only 14 percent of these foreign students move to the college preparatory track, compared to the national average of more than twice that number.

In fact, Germany is the country with the largest disparity in an OECD study that examines the range of immigrant students’ performance in comparison to native students in the receiving countries. Second-generation students lag behind their native peers by 93 score points, which is equivalent to one-and-a-half proficiency levels. This is particularly disconcerting since these students have spent their entire school career in Germany.

For a startling contrast, take Thomas Friedman’s recent column about the 40 finalists in the 2010 Intel Science Talent Search last month. The national contest sponsored by Intel Corporation identified and honored top math and science high school students in the United States based on their solutions to scientific problems. A majority of the 40 finalists were first-generation Americans, the children of immigrants born in the United States.

Conservatives’ “simple reform” to change birthright citizenship would undermine revered U.S. constitutional traditions and reverse one of our nation’s unique achievements, embodied in the current president and many others: that descent does not mean destiny.

Marshall Fitz is Director of Immigration Policy, Ian Millhiser is a Policy Analyst, and Michael Werz is a Senior Fellow at the Center for American Progress.